Clay v A. J. Crump & Sons Ltd

JurisdictionEngland & Wales
JudgeLORD JUSTICE ORMEROD,LORD JUSTICE UPJOHN,LORD JUSTICE DAVIES
Judgment Date30 July 1963
Judgment citation (vLex)[1963] EWCA Civ J0730-5
CourtCourt of Appeal
Date30 July 1963
Between:-
Leslie Walter Clay

(an infant, suing by his father and next friend Walter Leslie Clay)

Respondent (Plaintiff)
-and-
A.J. Crump & Sons Limited
Appellants (First Defendants)
S.V. Whitehouse Limited Appellants
(Second Defendants)
Chas. E. Cope & Sons Limited
(Third Defendants)
and
Alan Young
Appellant (Fourth Defendant)

[1963] EWCA Civ J0730-5

Before:-

Lord Justice Ormerod

Lord Justice Upjohn and

Lord Justice Davies

In The Supreme Court of Judicature

Court of Appeal

Mr D.P. DRAYCOTT (instructed by Messrs Turner Bayley & Co., Dudley) appeared on behalf of the Respondent (Plaintiff).

Mr E. BRIAN GIBBENS, Q.C. and Mr M.T.B. UNDERHILL (instructed by Messrs Buller Jeffries & Kenshole, Birmingham) appeared on behalf of the Appellants (First Defendants).

Mr B. CAULFIELD, Q.C. and Mr F. BLENNERHASSETT (instructed by Messrs Duggan Elton & James, Birmingham) appeared on behalf of the Appellants (Second Defendants).

Mr P. O'CONNOR, Q.C. and Mr R. KIDWELL (instructed by Messrs Hewitt, Woollacott & Chown) appeared on behalf of the Appellant (Fourth Defendant).

LORD JUSTICE ORMEROD
1

These appeals are from decisions of Mr Justice Thesiger given at Birmingham Assizes on the 29th May, 1962. They are by the first, second and fourth Defendants respectively in an action in which the Plaintiff claimed damages against them and against Charles E. Cope & Sons Ltd. for personal injuries. He was awarded the sum of £495. 12. 6d. and the blame was apportioned by the learned Judge between the first, second and fourth Defendants in proportions to which I will refer later. The third Defendants, Charles E. Cope & Sons Ltd., were dismissed from the action. The submission of each Defendant is that the Appellant in question was not in breach of duty to the Plaintiff and, in any event, that the proportions were wrong.

2

The Plaintiff at the time of the accident was a builders' labourer employed by the first Defendants who were building contractors. The second Defendants were a firm of demolition contractors and the fourth Defendant, Mr Young, was an architect engaged by the third Defendant, the building owner.

3

The site upon which the work was being done was in King Street, Dudley, Staffordshire. It was owned by the third Defendants who carried on the business of garage proprietors on land and buildings in King Street; and they had acquired the adjoining site for the purpose of extending their premises. The premises upon which the extensions were to be erected was the site of old buildings which were to be demolished and in addition the site had to be excavated so that it would be on the level of a datum point marked on the plan on the footpath of King Street. The datum point was 100 feet above sea level. The site was sloping and there was probably as much as 8 ft. or 9 ft. of earth to be removed at certain parts of it. The architect, Mr Young, was appointed in February 1958 and although the usual practice is for the contract to be made with the building contractor for the demolition and excavation of the site it was decided in this case to enter into a contract directlywith the demolition contractor in order to save time. The second Defendants were therefore engaged to clear the site in accordance with a plan provided by the fourth Defendant and to excavate it, also in accordance with the plan, to the level of the datum mark. There was a later plan which has been before the Court marked p. 2 which showed the site when it was cleared in readiness for the erection of the new buildings. In both the plans the architect had provided that the safety of surrounding walls should be ensured by leaving a bank of earth to act as a retaining bank 5 ft. wide at the base of the various walls. On the west of the site, that is, between the site to be excavated and the original buildings of the third Defendants, there was a wall which appeared to have been supported by two walls at rightangles which had the effect of buttresses although they would appear to have been used for other purposes as well. This wall and the buttress walls were to be demolished. The wall to be demolished abutted at each end on to other walls which were remaining and there was some doubt cast in the course of the evidence whether the workmen on the site, accustomed to buildings, should have noticed that this wall was not tied or bonded to the other walls or should have been put sufficiently on their guard to investigate whether it was so tied or bonded. In fact it was not tied or bonded and that may have been one of the causes for the collapse of the wall.

4

On the 20th March, 1958, when the work of demolition was in progress the second Defendants' foreman, a man of the name of Knott, was approached by the building owner who told him that the wall in question should not be demolished as it would leave the then existing premises open to anyone who came on to the site. At that time Knott was beginning the demolition of the wall and it has been said in evidence that it would have been demolished completely in another two hours. Knott spoke to his employer, the contractor, Mr Whitehouse, whospoke on the telephone to Mr Young and told him there was some objection to the wall being demolished at that time. Mr Young appears then to have asked Mr Whitehouse whether it was safe to leave it standing. On page 9 of the transcript of his Judgment the learned Judge says: "The architect asked if it was safe to leave the wall up and Mr Whitehouse said he thought it was and then went and looked and obtained, and relied upon, Mr Knott's opinion to the same effect. Later Mr Young, the architect, went to the site but made no examination of his own". It does not appear that at any stage the architect went on to the site to see for himself if the wall was safe, nor does he appear at any time to have given instructions for precautions to be taken for leaving it in a safe condition. There is no doubt that Mr Young went on the site at least once after the 20th March before the demolition contractors left the site. He himself agrees that he went there on the 1st April in order to satisfy himself that the demolition had been properly done so that he could issue a certificate. He did in fact issue a certificate for the full amount of the contract, although the work was not finished, and the demolition contractors had agreed to come on the site again at a date convenient to all parties to finish the work. Part of the work which would have to be done then would be the demolition of the wall in question.

5

On pages 9 and 10 of the transcript of his Judgment the learned Judge says this: "Nor was this all. On 1st April Mr Young came to the site. I do not accept his evidence, though I am sure he believes it to be true, to the effect that a substantial area in the north-west corner of the demolition site really remained to be excavated. I feel sure that if he had looked with reasonable care he would have seen that no 5 ft. strip was in existence along the retained wall where it should have been left. Moreover, he ought in the circumstances to have realised that the instructions which he gave this day to Mr Knott, who offered to take the tree down but was told to leaveit, to finish the excavating in the north-west would probably be interpreted as clearing earth to datum level up to and towards the neighbourhood of the tree. In approximate execution of the original plan Mr Young never even noticed that the buttress walls had been taken down. On 1st April Mr Knott had the tree in his mind and Mr Young, by gesture at least, indicated more excavation in that general direction. I am satisfied that Mr Whitehouse told Mr Knott to leave the tree but also that he, Mr Whitehouse, oughy to have realised that the excavation had gone on fairly close and finally right up to the wall which fell. Neither he nor Mr Young ever really applied their minds to that point, as to the removal of the buttress walls and earth".

6

The demolition contractors left the site somewhere about the 10th April. No-one seems to know exactly on what day they did leave. The building contractors came on to the site about the last week in May. Again there is no precise evidence as to the actual date. When the building contractors came on the site the wall was, of course, standing, although the two buttress walls had been demolished and according to the evidence of Knott, accepted by the learned Judge, the soil at the base of the wall had been excavated down to datum level right up to the wall. This would have the effect of exposing the foundations of the wall, or at least making them easy to inspect, and indeed a bricklayer employed by the first Defendants, who was called to give evidence said that when he looked at the wall and its foundations he realised that it was unsafe.

7

The first Defendants or their servants do not appear to have engaged in any serious inspection of the wall. The Managing Director, an experienced builder, who gave evidence, said that his firm always inspected a site to ensure that it was safe and to ensure that the proper safety precautions should be taken, but no careful inspection appears to have beenmade of the foundations of the wall in question. Early in June a hut to be used for storing tools and for the workmens meals was erected on the site and the place chosen was within a foot or two of the base of the wall in question. It may well be that this part of the site was a convenient one on which to erect the hut. It was, however, immediately under the wall in question and on the 7th June, 1958, the wall collapsed. It collapsed on to the wooden shed and demolished it and at the same time killed two of the men who were inside and injured the Plaintiff. It is in respect of that injury that the Plaintiff brings this action. There are, of course, other actions by the dependants and personal representatives of the men who were killed and those actions no doubt depend upon...

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